SUDEB MONDOL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3026/2019

[2025] HKCFI 2245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3026 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 30 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 25 April 2025. I shall deal with his application on the papers.

The applicant

3.  The applicant is a national of Bangladesh. On 1 July 2014, the applicant was arrested by police for illegal remaining. In due course, the applicant lodged a non-refoulement claim.

4.  The applicant’s claim was based on his fear of being harmed or killed by the applicant’s girlfriend’s brothers as they did not accept his relationship with the girlfriend because they were Muslims and the applicant was a Hindu.

5.  According to the applicant, the applicant encountered three incidents. First, the applicant was threatened by his girlfriend’s brothers in early 2012; then two to three weeks after, the brothers assaulted the applicant until he lost consciousness; and while the applicant continued to see his girlfriend, his friend told him that on one occasion, people assaulted his family when he was not home. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 22 July 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s First Decision, the Director assessed the applicant’s claim on all applicable grounds except BOR 2 risk and dismissed his claim. In summary, the Director found that: the level of risk of harm from his girlfriend’s brothers and/or his people in the past was indicative of the unlikelihood of future risk of harm and no conclusive evidence that the brothers had any real intention to seriously harm or kill the applicant [12-16]; reasonable state protection was available [17]; and internal relocation alternatives were available and reasonable [18].

8.  By way of the Director’s Further Decision dated 6 September 2017, the Director assessed the applicant’s claim on all applicable grounds including BOR 2 risk and dismissed his claim. In summary, the Director found that: the perceived risk of harm was avoidable if the applicant was to relocate [8] and reasonable state protection was available [9]; and having carefully reviewed the applicant’s claim, it was considered that the applicant failed to establish BOR 2 risk [10].

The Board’s Decision

9.  The applicant appealed the Director’s Decisions to the Board. On 29 May 2019, the Board conducted an oral hearing for his appeal, and found that he failed to establish his case [5.11].

10.  Having considered the evidence, the Board found that the applicant’s story was vague and unreliable, his assertions bare, and his character unreliable [6]. In any event, the Board was satisfied that internal relocation was available [17-18]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decisions.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 15 October 2019 for leave to apply for judicial review of the Board’s Decision. He did not put forth any ground.

12.  In the applicant’s affirmation in support of his application, the applicant exhibited the hearing bundle including the Board’s Decision, but did not put forth any grounds or particulars to challenge the Board’s Decision.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  The applicant has raised no valid ground to challenge the Board’s findings.

17.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.